Right To Counsel Paper Essays

Competing as an attorney for high school Mock Trial can be extremely rewarding and satisfying, especially if you’re interested in debate, public speaking, or law. In addition to direct and cross examination, in which attorneys question witnesses on both sides,, attorneys often need to perform opening and closing arguments, which serve very specific functions in a case and must be organized and executed accordingly. Opening and closing arguments are critical to any high school Mock Trial case and serve several important functions. In this blog post, we’ll discuss everything you need to know to write a stellar opening and closing argument for Mock Trial.

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An Overview of Opening and Closing Arguments


First comes the opening argument, which offers an initial impression to the judge (who will rule the outcome of the case) and scoring attorneys (who actually determine which team wins the round) and must provide a clear, concise and legally solid introduction to the case the presenting attorney’s side intends to prove.


Ending the case is the closing argument, which is the judges’ final impression before an attorney rests their case. It is often longer and more detail-oriented in its argumentation than the opening statement. It also requires a review and summarization of the evidence presented during the case and a legal argument regarding the evidence and what it proves or disproves. Furthermore ,a  closing argument often includes a rebuttal section, so attorneys must be ready to respond and challenge opposing arguments in a dynamic setting.


Although these two parts of a case—the opening argument and the closing argument—may seem similar and certainly require the same foundational skills, they are different enough in purpose to require specific and targeted preparation.



The Skills Required for a Strong Opening and Closing Argument



As mentioned earlier, a core set of skills is required for nearly all parts of Mock Trial competition, including opening and closing statements. Mastering certain skills related to confidence in public speaking, clear legal thought and analysis, and quick critical thinking help you exude a polished and professional demeanour while elevating your argument to a higher level.


Public Speaking


Strong public speaking ability is perhaps the most fundamental trait to a successful mock trial attorney, and is especially important for the opening and closing arguments. Public speaking skills include much more than knowing one’s argument and presenting it carefully. The finer points of speaking well include considering one’s inflection, tone, pace, emotion and volume during an argument.


Mastering these factors is often harder than it may seem, simply because different arguments will require the attorney to set different atmospheres in the courtroom. For example, if an attorney wishes to draw attention to the plight of a victim and evoke sympathy, a strong, harsh and forceful presentation may not be the most effective. On the other hand, if the attorney wishes to emphasize the callousness or malice of a defendant in the same case, the presentation previously described would be much better suited.


The key to using the finer points of public speaking is to understand the effect that these factors will have on the audience. When you realize the huge difference that simple changes in volume or pace can make to the overall nature of the argument, you can create an argument perfectly suited to the facts and case at hand.


Understanding of the Legal Concepts Behind a Case


Another prerequisite to having a polished and successful opening or closing argument is a thorough understanding of the legal concepts and statutes underlying a case. This understanding is crucial for the attorney presenting these arguments, because often in a case, the opening or closing arguments are the only times when legal theory can be presented directly and openly.


Questioning witnesses about events and establishing a story can provide the elements necessary to prove guilt or innocence, but does not afford the opportunity to present legal reasoning. Important parts of a case such as the burden of proof, the elements of the crime, and the requirements to find guilt or innocence can only be brought up during opening or closing arguments.


A clear and accurate explanation of these legalistic parts of the case ensure two things. First, such a presentation portrays the attorney as knowledgeable and competent to a judge.. Secondly, a complete and accurate presentation of the legal elements of a case presents the argument of the attorney in a structured, easily digestible way. When a judge hears which elements that will be proved, and understands how the other side must respond to win the case, they will be able to follow the testimony of witnesses much more closely and understand the significance of facts presented. It is important to remember that a case is not ultimately meant to tell a story but to prove guilty or not guilty in terms of the law.


The Importance of Memorization


Finally, one feature common to all outstanding opening and closing arguments is that they are memorized. Although some attorneys and coaches may argue that bringing up notes and referencing them occasionally is acceptable, top teams don’t employ this practice. Memorizing one’s argument accomplishes three major things: it shows confidence, helps the attorney focus on delivery rather than content, and allows for freedom of movement throughout the courtroom that can make the presentation of an opening or closing statement more dynamic.


Memorization automatically displays an elevated level of confidence and preparation to the judge and scoring attorneys. Just seeing an attorney enter the well without any aids and begin an argument is powerful. When an attorney displays confidence in the manner which they speak, this confidence is directly translated to the case they present.


Secondly, memorization helps the attorney better focus and perfect the finer points of public speaking. Without having to worry about looking for their next line, an attorney can focus more of their attention on the quality of their speaking. Additionally, people in general tend to speed up and talk too fast when looking at or reading from a paper. Thus, one of the virtues of memorization is that an attorney automatically speaks more slowly and clearly.


Finally, without an aid or paper, an attorney is not tied to the podium and is not seen as clumsy because they are holding something. This allows the attorney to  move about the courtroom, physically pointing to any evidence that may be displayed, and motioning actively, such as counting off elements on one’s hand or gesturing towards certain witnesses. The more an attorney moves about a courtroom, the greater control they have over it. If an attorney can move from the counsel table, walk over to the exhibits, and end in front of the judge, they display an invaluable sense of  comfort and poise..



Components of a Successful Opening Argument



There are four major elements to a complete opening argument. Although the exact structure and order of these elements within the overall argument will vary, it is important to include significant detail about each in order to lay the proper groundwork for the case an attorney intends to present. The elements include:


1. A factual and sequential overview of the major facts in the case important to the presenting attorney’s side. The amount of storytelling involved will vary depending on many factors, including whether the argument is for the prosecution or the defense team.

Because the prosecution team presents their opening statement first, and because they have the burden of proof (the requirement to prove the defendant guilty), their opening will include much more storytelling. Often, a prosecution opening statement can be structured entirely around the the storyline of the case. Such an intensive retelling is not necessary for the defense, as they must simply cast a reasonable doubt on the allegations made. Thus, a defense opening will often include a story of much more limited scope and one targeted specifically towards the prosecutorial weaknesses of the case.


2. A description of what the prosecution or defense intends to prove or show. For the prosecution, this should be a statement of the charges, and the corresponding list of actions the defendant must have taken to be found guilty. This statement should be accompanied by a short description of what exactly the defendant did. For the defense, a focus should be placed on the weakest legal elements that the prosecution must prove. Mock trial cases will never favor one side over the other, so there will always be the opportunity to poke holes in the argument of the other side.


For example, if the prosecution must prove “malice aforethought” by the defendant, but the defense will call a character witness to testify to the defendant’s good nature, this should be brought up in the opening statement. One thing the defense should take care to avoid is appearing to argue their case with the opening statement. The opening statement is not the place to draw legal conclusions, as no evidence has been presented yet. The opening statement is the place to present a side’s theory of the case and any important facts that will come to light during trial.

3.  A short explanation of the evidence that will be presented. For the prosecution, this can include actual physical evidence, such as a diagram or letter. These should be referenced and used during opening statements by the prosecution. Additionally, both the prosecution and defense should be sure to emphasize particularly important facts to their side during the opening. If the defense plans to have a witness testify who will provide an alibi for the defendant, this should be brought up in opening.  


4. Ashort description of what each of the witness will testify. This provides a roadmap for the judge and scoring attorneys, and helps them know what to expect from each witness. It often helps to present a side’s witnesses in the order that they will appear. This allows for a streamlined introduction to the facts, as well as the structure of the case, and minimizes confusion created by varying orders.


To summarize, the four elements of a successful opening argument are an overview of the major facts of the case, a description of what the prosecution/defense intends to argue, a description of the evidence to be presented, and a description of each witness’ testimony.  By including these four elements into an opening argument, an attorney will be sure to cover all the bases necessary for a solid case foundation, and will fill in any gaps of knowledge the judge may have, allowing them to focus entirely on the direct examination of witnesses that follows.



Mistakes to Avoid in an Opening Argument



There are certain very common mistakes which should be avoided at all costs during opening statements.


One of the most often encountered occurs when one side states what evidence the opposing side will show. Although both teams have a pretty good idea of what the other will attempt to prove and what evidence or witnesses they will use because of the structure of Mock Trial, this knowledge should not be used in opening statements. Just like a real attorney does not know what exactly the opposition’s witnesses will testify, the same holds true for Mock Trial.


The second common mistake to avoid is drawing legal conclusions. Although it is fine to say what their side intends to do, an attorney should not present their opening statement as a conclusive legal argument. Phrases such as “the evidence will show” are always good ways to make a point while observing this boundary.



Components of a Successful Closing Argument



There are also four important elements present in a good closing argument. These elements are similar to those listed in the opening statement but differ in two significant ways.


First and most importantly, closing occurs after a case has been presented, meaning that all evidence and testimony has been heard. This allows an attorney to speak much more concretely about what evidence favors their case. Secondly, closing argument often includes a rebuttal, where each attorney has the opportunity to argue points brought up in the opposing side’s argument. This allows for a much more direct attack on the weak legal points of the opposing side’s case than anywhere else in the trial. The components of a closing argument are as follows:


  1. A complete review of the important evidence in the case. Although a closing will be longer than an opening, it is still not long enough to bring out every piece of evidence presented, so an attorney must limit themselves only to the most crucial and significant. This is the place for a recap of anything that tends to prove or disprove elements of the crime.


  1. An attack on the opposing side’s case. If an opposing witness was impeached during cross examination—that is, they made a statement during questioning inconsistent with their witness statement in the case book, and the questioning attorney formally drew attention to this inconsistency—this is the place to remind the court. If the opposing side failed to adequately address a significant element of the crime, this is where it can be brought up. The closing argument is not only the place to reaffirm one’s argument, but to help discredit and tear down the argument of the opposing side. This can be done in a practiced manner as part of the standard closing statement, but it can also be included in the rebuttal, which is the third element of a closing argument.


3. The rebuttal. The rebuttal is usually around one minute of time where an attorney can counter directly what the other side has claimed. It often helps if an attorney takes notes on possible ideas for rebuttal throughout the trial and starts and ends their rebuttal with rehearsed and memorized statements. This gives the rebuttal a natural and fluid presentation while also making it dynamic and unique to every trial.

  1. An emotional appeal. If so desired, the closing argument is the ideal place for an emotional appeal to the judge.  This can work for both the prosecution and defense. For example, the prosecution can remind the judge of the suffering of the victim and the need for justice. The prosecution can also play up and emphasize any negative characteristics of the defendant in order to strengthen this emotional appeal. Conversely, the defense can emphasize the bright prospects of the defendant, and any positive characteristics they may possess. These kinds of additions do not fit into every case and are usually more stylistic than substantive, but can be powerful tools when used in closing argument.



Mistakes to Avoid in a Closing Argument


Just as with opening, there are common mistakes to avoid when conducting closing argument. One of the most common mistakes is to incorrectly quote the opposing counsel’s argument. It can be a powerful tool to use a person’s exact words against them in argument, but any effect is lost if they are misquoted. The same goes for misquoting witnesses. At best the judge will see it as a careless mistake. At worst, it can even be seen as a malicious attempt to deceive the court.


Another extremely common mistake is to reference evidence that had actually been excluded via objection. For example, if an attorney intended on having a particular piece of testimony included in the case, but this testimony was excluded because of an objection, it is stricken from the record and cannot be used as evidence. If an attorney quotes something that was actually excluded, it is possible for the opposing attorney to call them out during rebuttal or bring up the issue before scoring is submitted. As such, the best way to avoid making this mistake is to keep careful track of what evidence comes in and what stays out, and to know one’s closing well enough to be able to modify it if necessary and avoid any excluded evidence.


The more one competes and observes others in Mock Trial, the more they will internalize what it means to have a great argument. The most important tip for writing a good opening or closing is to first stick to the fundamentals of the case. An attorney must first cover the basics of the law and case. Making sure these elements are solid both factually and legally, will create a foundation upon which witnesses and examining attorneys will be able to build on. Once the content itself has been finalized, mastering delivery and presence will result in an extremely effective opening or closing argument.


Hopefully, armed with these tips, you’ll be well on your way to creating an opening or closing argument that will propel your mock trial team to victory. If you’re looking for more guidance on your extracurriculars—be it choosing them, excelling in them, or gaining leadership positions—check out CollegeVine’s extracurricular Mentorship Program!

Anamaria Lopez

Managing Editor at CollegeVine Blog

Anamaria is an Economics major at Columbia University who's passionate about sharing her knowledge of admissions with students facing the applications process. When she's not writing for the CollegeVine blog, she's studying Russian literature and testing the limits of how much coffee one single person can consume in a day.

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Of all of the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.- United States v. Cronic, 466 U.S. 648, 654 (1984)
The law is a system that protects everybody who can afford to hire a good lawyer.   - Mark Twain
The legal system is so complex and contains so many procedural traps that a layperson accused of a crime can rarely navigate it alone. Those accused of crimes rely upon lawyers to protect all of their legal rights; thoroughly investigate the facts; test the prosecution’s case through cross-examination of witnesses and other means; produce evidence that casts doubt upon guilt; and, for those found guilty, present evidence to be considered in mitigation with regard to punishment.
Justice Hugo Black stated for the Supreme Court in Griffin v. Illinois, 351 U.S. 12 (1956), “[T]here can be no equal justice where the kind of trial a [person] gets depends on the amount of money he [or she] has.” However, in the criminal courts in the United States today, the kind of justice people get often depends on how much money they have. Often it seems that it is better to be rich and guilty than to be poor and innocent. Many poor people accused of crimes are not provided with lawyers who have the time, expertise, resources, and support necessary to represent them adequately.
The right to an attorney was established by the Supreme Court in Gideon v. Wainwright in 1963, but inadequate legal representation for the poor continues to be the norm rather than the exception in too many jurisdictions throughout the country. Although a person accused of a crime must be provided a lawyer at trial, many states still lack comprehensive and adequate programs for providing representation. People who cannot afford a lawyer are often processed through courts in assembly-line fashion in violation of this fundamental right.
In Georgia, for example. For years after Gideon was decided, Georgia left the responsibility and cost for indigent defense to each of its 159 counties. As a result, the method of providing such representation varied greatly from county to county. Many counties conscripted lawyers to handle criminal cases. Every member of the bar was compelled to accept an indigent criminal case – with or without compensation, depending upon the jurisdiction – when his or her turn came. Other counties contracted with attorneys, often selecting lawyers on the basis of the lowest bid for handling the cases of poor people accused of crimes. Other counties appointed willing lawyers and paid them by the case or by the hour at rates far below what lawyers were paid for other work. Only 21 counties employed public defender offices composed of full-time, salaried attorneys specializing in the representation of poor people accused of crimes.
A common feature of these haphazard and underfunded approaches was deficient representation. The vice president of the Georgia Trial Lawyers Association described in 1985 the “the mirror test” used to determine whether a defendant was receiving adequate counsel: “You put a mirror under the court-appointed lawyer’s nose, and if the mirror clouds up, that's adequate counsel.”
Georgia did not create a state-wide public defender program until 2003; it did not pass legislation funding it until 2004; and the program did not begin operating until 2005. While an improvement over the fragmented non-system that existed before it, the new system has in some cases failed completely to provide representation to some people accused of crimes and has provided inadequate representation to many others. Public defenders carry crushing caseloads, lack the investigative and expert assistance they need to represent their clients effectively, and are pressured to represent defendants with conflicting interests. Some capital cases have gone without funding for counsel, investigation, and experts for years, making a timely investigation and a fair trial impossible.
The Georgia Supreme Court has responded to this denial of counsel by acceptance. It sanctioned and encouraged the interruption of ongoing attorney-client relationships in a search for cheaper lawyers when the state was unable to meet its obligation to pay for representation in the capital cases of Phan v. State and Weis v. State. Hundreds of defendants in felony cases have not had any representation – some in pre-trial and others on motions for new trial or appeal. Fixed-fee contracts have increasingly been used to provide only nominal representation to many other defendants.
All three branches of Georgia’s government have failed in their constitutional and moral responsibility to insure the poor people accused of crimes are effectively represented by competent lawyers, and have their guilt or innocence – and in some cases, whether they will live or die – determined in a “reliable adversarial testing process.” But other states, such as Alabama, do not even have a public defender system.
The states that sentence the most people to death and carry out the most executions – Texas, Alabama, Georgia, Florida, Oklahoma and others (and the jurisdictions within those states which send the most people to death row) – have not historically provided competent counsel to people facing the death penalty. Those accused were often assigned incompetent lawyers who offered little or no resistance as their clients were swiftly dispatched to death row. There have been capital cases in which the lawyers appointed to represent the accused have failed to investigate the facts of the crime or the backgrounds of their clients, but have still been found to be sufficient counsel under the Supreme Court's highly deferential standard for effective counsel adopted in Strickland v. Washington, 466 U.S. 668 (1984).
Death sentences have even been imposed and upheld in cases in which the defense lawyers were asleep, intoxicated, or under the influence of drugs. State supreme courts affirmed capital cases after considering briefs that would be rejected in a first-year law school writing course (and, in some cases, in a high school English class).
Houston alone is responsible for more executions than any state except Texas. Three people sentenced to death in Houston—George McFarland, Calvin Burdine, and Carl Johnson—were represented by lawyers who slept during their capital trials. The United States Court of Appeals for the Fifth Circuit, sitting en banc, struggled with the question of whether Burdine’s right to counsel was violated when his lawyer, Joe Frank Cannon, whose entire file was less than three pages of notes, slept during parts of the two-day trial in which Burdine was convicted and condemned to death. A panel of the Court denied habeas relief for Burdine. However, the full Court ultimately decided, by a vote of 9-5, that Burdine’s right to counsel was violated and he was entitled to a new trial, but not without a very bitter dissent by Judge Barksdale. Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc).
Cannon also slept during the capital trial of Carl Johnson. Johnson was executed by Texas in 1996.
George McFarland's case is still pending in the courts. His conviction and death sentence have twice been upheld, even though his lawyer slept through parts of his trial. The presiding judge said that the Constitution guarantees a defendant a lawyer, but it does not guarantee that the lawyer must be awake.
The Texas Court of Criminal Appeals upheld the conviction and sentence on direct appeal, McFarland v. State, 928 S.W.2d 482 (Tex. Cr. App. 1996), over a dissent by Judges Charles Baird, joined by Judge Morris Overstreet, which argued “[a] sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense." Id. at 527.
The Court upheld the conviction and sentence again on post-conviction review. Ex parte McFarland, 163 S.W.3d 743 (2005). Judges Baird and Overstreet were no longer on the Court and there were no dissents.
Through litigation and advocacy, SCHR has helped bring about the establishment of public defender programs that provide quality legal representation to poor people accused of crimes. SCHR’s lawyers filed six lawsuits that helped bring about Georgia's creation of a public defender system. They have filed three since the system was created to protect the rights of those accused when the system failed to provide representation or delayed representation for so long that it became meaningless.Additionally, SCHR helped found Gideon’s Promise (formerly known as the Southern Public Defender Training Center). This organization is dedicated to building a community of committed, zealous, client-centered public defenders throughout the South.

The Supreme Court in Gideon v. Wainwright required states to provide assistance of counsel to people facing criminal charge, but Gideon's sweeping mandate has remained little more than a paper victory in many parts of the country, particularly in the Deep South. People who cannot afford a lawyer are often processed through Southern courts in assembly-line fashion in violation of this fundamental right.

When the local or state government fails to comply with Gideon's mandate, the lack of a functional indigent defense system compromises the entire judicial system. As an adversarial system of justice, our criminal justice system relies on competent defense counsel to challenge the evidence and vigorously defend the person accused. Without such a defense, there is no fair trial.

To enforce the right to counsel, SCHR has brought class action lawsuits, issued investigative reports, and advocated for legislative reforms.

N.P. v Georgia was filed in January 2014, seeking remedies for the frequent absence of public defenders in juvenile court, the assembly-line processing of adults in the superior courts, and the inability of the Cordele Circuit’s three public defenders to provide counsel and advocate for all of their clients.

Flournoy v Georgia, sought to provide lawyers for over 200 people convicted of offenses who were without counsel. This case was filed in 2009 and was settled in 2011.

Cantwell v Crawford, was filed on behalf of hundreds of poor people without lawyers in Georgia’s Northern Judicial Circuit. This case was filed in 2009 and was settled in 2010.

Right to Counsel:

Miller v Deal was filed in March of 2011, which seeks to secure lawyers for indigent parents who have been jailed or are in danger of being jailed without counsel for being too poor to fulfill their child support obligations.

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